1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

OMAR ALOMARI : 

 : 

 Plaintiff, : Case No. 2:11-CV-613 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

OHIO DEPARTMENT OF : Magistrate Judge Deavers 

PUBLIC SAFETY, et al., : 

 : 

 Defendants. : 

OPINION AND ORDER 

I. INTRODUCTION 

 This matter is before the Court on Defendants’ Motion for Summary Judgment of 

Defendants Ohio Department of Public Safety, Director Thomas P. Charles in his Official 

Capacity, Thomas J. Strickrath, and William F. Vedra, Jr. (Doc. 60), and Plaintiff Omar 

Alomari’s Motion for Summary Judgment. (Doc. 77). For the reasons stated below, 

Defendants’ Motion is GRANTED and Plaintiff’s Motion is DENIED. 

II. BACKGROUND 

A. Factual Background 

 In July 2005, Plaintiff Omar Alomari (“Plaintiff” or “Alomari”) began working at Ohio 

Homeland Security (“OHS”), as part of the Ohio Department of Public Safety (“ODPS”). The 

purpose of his position was to create a liaison at OHS between the law enforcement and Muslim 

communities in central Ohio. From approximately November 2005 through October 2006, 

Alomari worked an average of 40 hours per week as a contract employee of OHS. Alomari 

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initially reported to Executive Director of Homeland Security, John Overly, before Overly was 

succeeded by Bill Vedra. 

 During his employment, Alomari conducted or participated in presentations or trainings 

for different law enforcement-affiliated groups, often discussing Arabic/Islamic culture and 

radicalization. Some of Alomari’s presentations were met with conflicting, and some 

controversial, information from co-presenters. In fall 2008, Alomari spoke about radicalization 

at a Terrorism Liaison Officer (“TLO”) training. Following Alomari’s presentation, Columbus 

Police Officer Todd Sheets spoke about international terrorism. At the beginning of Sheets’ 

presentation, he made what Alomari considered to be contradictory comments about Alomari’s 

speech. Alomari complained to Vedra about the content of Sheets’ presentation. Similarly, 

Alomari attended a January 2009 training held at the Columbus Police Academy, and put on by a 

group called Security Solutions International (“SSI”). Alomari felt that the speaker misstated a 

great deal of allegedly historical information about the Islamic community. In response to the 

SSI training, Alomari alleges that he wrote Vedra a six or seven page report, explaining why he 

thought the presentation undermined the outreach efforts of OHS. 

 On April 13, 14, and 15, 2010, the Columbus Police Department held a two-and-a-half 

day training entitled, “Understanding the Threat to America” at the Columbus Police Training 

Academy. The training was run by John Guandolo and Stephen Coughlin. Neither Vedra nor 

Alomari attended the training session. During the training, Vedra received phone calls from 

training attendees who thought that the presenters were making offensive statements about 

Alomari. Vedra was also told that Coughlin and Guandolo showed a picture of Vedra, Alomari, 

and a representative from the Council on American-Islamic Relations (“CAIR”)1

 that had been 

                                                            

1

 Certain CAIR officials had been investigated by the FBI, leading the FBI to cut off association with CAIR. 

According to Defendants, “OHS had asked the FBI about CAIR, and OHS was told that the FBI had no problem 

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taken at an interfaith forum Alomari had organized. Presumably using the photo as “evidence,” 

Coughlin and Guandolo accused Alomari and Vedra of associating with a terrorist organization. 

 Starting in March 2010, and continuing throughout the course of his employment, 

Alomari was met with criticism from The Jawa Report, an anonymously-authored extreme Right 

Wing blog. The blog attacked Alomari on numerous grounds, ranging from his testimony before 

a Congressional committee to a 40-page cultural guide Alomari had authored. Based on 

Alomari’s work, the blog alleged that Alomari was promoting Islamist propaganda. April 2010 

posts targeted both Alomari and Vedra, accusing both men for their association with CAIR. The 

blog went as far as to claim that Alomari was working at ODPS as a mole for CAIR, and Vedra 

knowingly permitted Alomari to work as a terrorist insider. The blog often claimed to have 

received information from unnamed insiders at ODPS. 

 On April 20, 2010, the Jawa Report began writing posts about Alomari’s removal from 

his previous position at Columbus State Community College (“CSCC”), a position that had not 

been included on Alomari’s employment records with ODPS. The April 20, 2010 post alleged 

that Alomari’s removal from CSCC was due to Alomari’s engagement in a sexual relationship 

with one of his female students. An April 21, 2010 post again referenced Alomari’s termination 

from CSCC based on his involvement with a female student, but went onto discuss ODPS 

employee Olen Martin’s educational background. According to an unnamed insider, Martin had 

given a fake bachelor’s degree and fake master’s degree on his ODPS employment application. 

The post claimed that Suffield University, the school from which Martin obtained his degrees, 

was a “known diploma mill.” (Defendants’ Motion for Summ. Judg., Doc. 60 at 15). On April 

27, 2010, the Jawa Report published another post about Alomari, this time concerning Alomari’s 

                                                                                                                                                                                               

with CAIR’s office in Columbus, Ohio. Accordingly, OHS maintained a dialogue with the local CAIR office.” 

(Defendants’ Motion for Summ. Judg., Doc. 60 at 13). 

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lawsuit against the student with whom he had been involved at while employed at CSCC. Vedra 

did not read any of the Jawa Report posts, and did not consider it to be a legitimate news source. 

 Shortly thereafter, a few media outlets contacted ODPS and inquired about whether 

Alomari had omitted his employment history with CSCC, and any related incidents, on his 

ODPS employment records. Vedra was made aware of the media requests, and asked Alomari if 

there was any truth to them. Alomari stated that he had not included his employment with CSCC 

on his application.2 Based on Alomari’s admission that he had failed to include his employment 

with CSCC on his ODPS applications, ODPS initiated a disciplinary process, which led to an 

administrative investigation (“AI”). The investigation was conducted by Kathleen Botos, an 

investigator in ODPS’ AI unit. 

 Botos was instructed to start her investigation by reviewing the Jawa Report posts 

concerning Alomari’s employment at CSCC, and determine if there was any truth to it. 

Following some online research, Botos found court records concerning Alomari’s lawsuit against 

his former student, whom he had sued following his termination from CSCC.3

 Botos also 

examined Alomari’s civil service application in his personnel folder, which did not include any 

                                                            

2 Alomari had been employed as a professor at CSCC from 1991 through 1996. In spring 1996, Alomari became 

romantically involved with Sheri Lenk, a CSCC student. They dated until September 1996, when Lenk ended the 

relationship, but then attempted to rekindle the relationship numerous times. On December 2, 1996, Lenk filed a 

sexual harassment complaint against Alomari with Dr. Lee Willis, the CSCC Vice President for Student Services. 

CSCC conducted an investigation based on Lenk’s allegations, which eventually resulted in Alomari’s removal from 

his position. 

 On December 31, 1996, shortly after Alomari’s termination from CSCC, attorney Emily Lewis informed 

CSCC that Alomari was filing a grievance regarding his discharge from CSCC. The grievance procedure included a 

case presentation to a panel of faculty and staff, who were to consider whether Lenk and Alomari had been sexually 

involved while Lenk was enrolled in Alomari’s class. Though the panel found that the evidence did not 

conclusively show that Alomari had a consensual sexual relationship with Lenk while she was his student, CSCC’s 

Vice President for Academic Affairs affirmed the findings of the investigation committee, and upheld Alomari’s 

termination. It was not until the end of 1998, however, that Alomari reached a settlement with CSCC. 

3

 On January 19, 1999, Alomari filed a lawsuit against Lenk in the Franklin County Court of Common Pleas, 

alleging: intentional infliction of emotional distress; defamation; tortious interference with a contract; and 

negligence. Lenk filed a counterclaim against Alomari, alleging: intentional infliction of emotional distress; 

negligent infliction of emotional distress; fraudulently inducing her into an intimate relationship which broke up her 

marriage; and sexual battery. On March 30, 2000, Lenk moved from summary judgment, which the Common Pleas 

Court granted on August 9, 2000. 

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information about his employment with CSCC. Alomari claims that he filled out a handwritten 

application, for which he was told only to include relevant previous employment, and thus 

neglected to include CSCC. Botos did not find a handwritten application in his personnel file. 

Alomari further alleges that, when he was initially hired, he hand-delivered a copy of his resume, 

despite being asked to email a copy; Botos, however, did not see a copy of Alomari’s resume in 

his personnel folder. Upon review of a copy of the background investigation done on Alomari, 

Botos did not see CSCC listed as a previous employer. 

 On May 13, 2010, Botos conducted an interview with Alomari as part of the AI. In 

keeping with custom practice, the interview was recorded. During the interview, Alomari 

conceded that he did not include CSCC, or various other previous employers, on his employment 

application. According to Alomari, he felt he only needed to include any previous employment 

that was relevant to the job he was performing for ODPS. Alomari told Botos that he had not 

taught Islamic studies, or anything similar. Furthermore, he stated that he had resigned from 

CSCC, after submitting his resignation pursuant to a settlement in arbitration. According to 

Alomari, CSCC did not terminate his employment. After Botos stated that she had 

documentation from the Ohio Civil Rights Commission explaining that Alomari had filed a 

wrongful termination charge against CSCC, Alomari then said that CSCC had threatened to fire 

him. Alomari also said that he had been investigated for having a relationship with a CSCC 

student, but that she had not been his student—a statement he doubled back on when questioned 

by Botos. When asked about his lawsuit against Lenk, Alomari insisted that, while he could not 

remember her charges against him, he had dropped the lawsuit. 

 Following her interview with Alomari, Botos compiled documents she had received from 

various sources, including documents obtained by CSCC through a public records request. In 

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her report, Botos found that: Alomari had purposely omitted numerous previous employers from 

his background investigation and employment application, including CSCC; the evidence 

showed that Alomari had not resigned from CSCC, but was terminated for engaging in a sexual 

relationship with one of his students; Alomari was dishonest during his AI interview with Botos; 

and Alomari knowingly ignored the ODPS application instruction that said to include all 

previous employers, thereby giving the impression of impropriety regarding his removal from 

CSCC. 

 Subsequently, ODPS Director Thomas Strickrath called a meeting to discuss Alomari and 

to determine whether he should be disciplined. Vedra, ODPS Assistant Director George Maier, 

ODPS Human Resources Director Rob Young, Larry McCartney, interim ODPS general counsel 

Heather Frient, and ODPS Deputy Chief of Staff Mike McCann attended the meeting. The 

group decided that Alomari should be removed, but Vedra, in particular, recommended that 

Alomari be removed based on the findings of the AI. Strickrath was responsible for making the 

final decision, and it was his opinion that, if the circumstances surrounding Alomari’s 

termination from CSCC has been known at the time he applied, Alomari would likely not have 

been hired. Alomari was terminated on June 30, 2010. 

 Immediately following Alomari’s termination from OHS, he appealed the decision to the 

State Personnel Board of Review (“SPBR”). During discovery on the merits of removal, ODPS 

claimed that Alomari’s duties had made him an unclassified fidiuciary, as a high-level 

policymaking employee for ODPS, under O.R.C. § 124.11(A)(9). On May 3, 2011 and June 27, 

2011, hearings were held before an Administrative Law Judge (“ALJ”) of the SPBR. On 

October 20, 2011, the ALJ issued a Report and Recommendation, finding that Alomari’s duties 

at ODPS had resulted in his being an unclassified fiduciary to ODPS. Moreover, the ALJ found 

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that Alomari was a liaison between the U.S. Department of Homeland Security and OHS. 

Around January 6, 2012, the SPBR adopted the ALJ’s Report and Recommendation and 

dismissed Alomari’s civil service appeal. 

B. Procedural Background 

 Plaintiff filed his Complaint on July 13, 2011, alleging six claims: (1) national origin 

discrimination, in violation of 42 U.S.C. § 2000e et seq.; (2) religious discrimination, in violation 

of 42 U.S.C. § 2000e et seq.; (3) race discrimination, in violation of 42 U.S.C. § 1981; (4) 

retaliation for opposing discrimination, in violation of 42 U.S.C. § 1981; (5) equal protection, in 

violation of 42 U.S.C. § 1983; and (6) First Amendment retaliation, in violation of 42 U.S.C. § 

1983. (Doc. 2). On October 21, 2013, Defendants filed their Motion for Summary Judgment. 

(Doc. 60). Two days later, on October 23, 2013, Plaintiff filed his Motion for Summary 

Judgment. (Doc. 77).4

 On July 17, 2014, this Court held oral argument on the parties’ Motions for Summary 

Judgment, and counsel for all parties participated. This matter is, therefore, ripe for review. 

III. STANDARD OF REVIEW 

 Summary judgment is proper if there is no genuine issue of material fact and the movant 

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if proof of 

that fact would establish one of the elements of a claim and would affect the application of 

governing law to the rights of the parties. Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 

1984) (citing Johnson v. Soulis, Wyo., 542 P.2d 867, 872 (1975)). 

                                                            

4

 During the discovery process, Plaintiff filed two Motions to Compel Discovery, seeking to obtain information on 

matters Defendants argued were privileged. (Doc. 33, Doc. 44). After both Motions were denied by the Magistrate 

Judge (Doc. 35, Doc. 41, Doc. 78), Plaintiff filed Objections (Doc. 38, Doc. 43) that were resolved by this Court in 

its June 19, 2014 Order. (Doc. 85). 

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 A movant for summary judgment meets its initial burden “by ‘showing’ – that is, 

pointing out to the district court – that there is an absence of evidence to support the nonmoving 

party's case.” Dixon v. Anderson, 928 F.2d 212, 216 n. 5 (6th Cir. 1991) (citing Celotex Corp. v. 

Catrett, 477 U.S. 317, 324-25 (1986)). At that point, the non-movant must set forth specific facts 

showing that there is a genuine issue for trial. Id. (quoting Fed.R.Civ.P. 56(e); Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). It is not, however, the role of the trial court to 

“resolve factual disputes by weighing conflicting evidence because it is the jury's role to assess 

the probative value of the evidence.” Kraus v. Sobel Corrugated Containers, Inc., 915 F.2d 227, 

230 (6th Cir. 1990) (citing Stone v. William Beaumont Hosp., 782 F.2d 609, 615 n. 5 (6th Cir. 

1986); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980)). All evidence and 

reasonable inferences must be viewed in the light most favorable to the party opposing the 

motion. Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 759 (6th Cir. 2010) (citing Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). 

 The standard of review for cross-motions for summary judgment “does not differ from 

the standard applied when a motion is filed by only one party to the litigation.” United States 

S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013). 

IV. LAW & ANALYSIS 

 At oral argument, Plaintiff moved for an adverse inference regarding Alomari’s resume, 

which was never produced during discovery. The Court must address Plaintiff’s request before 

moving forward in its analysis. 

 To establish an adverse inference instruction based on the destruction of evidence, 

Alomari, as the moving party: 

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“must establish: (1) that the party having control over the evidence 

had an obligation to preserve it at the time it was destroyed; (2) 

that the records were destroyed with a culpable state of mind; and 

(3) that the destroyed evidence was relevant to the party's claim or 

defense such that a reasonable trier of fact could find that it would 

support that claim or defense.” 

Beaven v. United States DOJ, 622 F.3d 540, 553 (6th Cir.2010) (quoting Residential Funding 

Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)). Plaintiff argues the Court 

should grant an adverse inference regarding Alomari’s resume, the handwritten application he 

completed, and various other pieces of evidence that have not been produced during discovery. 

Regarding Plaintiff’s resume, Defendants state that they have been unable to produce it, because 

it is not in Alomari’s personnel file, where it should be located. Defendants made no argument 

as to the other pieces of evidence referenced by Plaintiff. 

 Considering the facts in the light most favorable to Plaintiff, he can arguably establish the 

first and third prong of the adverse inference test. Plaintiff has not shown, however, that ODPS 

destroyed the records with a culpable state of mind. Moreover, there is a disputed issue of 

material fact that ODPS ever possessed the resume in the first place. Thus, Plaintiff’s request for 

an adverse inference is DENIED. 

A. National Origin and Religious Discrimination, and Equal Protection 

 The Court now turns to Plaintiff’s claims of discrimination based on his national origin, 

religion, and race. Counts I and II, national origin discrimination and religious discrimination, 

respectively, are brought pursuant to Title VII. Count V alleges an equal protection violation, in 

violation of 42 U.S.C. § 1983. Within his equal protection claim, Plaintiff inherently raises a 

race discrimination claim.5

 Moreover, Plaintiff’s claims for national origin and religious 

discrimination, as well as his equal protection violation, are each raised within the confines of 

                                                            

5

 Plaintiff cites his race throughout Count V of the Complaint. (Complaint, Doc. 2 at 14). 

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workplace conduct. It is well settled that “[t]he elements for establishing an Equal Protection 

claim under § 1983 and the elements for establishing a violation of Title VII disparate treatment 

are the same.” Deleon v. Kalamazoo County Road Com’n, 739 F.3d 914, 917-18 (6th Cir. 2014) 

(internal citations omitted); see also Toth v. City of Toledo, 480 F. App’x 827, 832 (6th Cir. 

2012). The Court will, therefore, address Plaintiff’s discrimination and equal protection claims 

within one analysis. 

Title VII prohibits employment practices that “discriminate against any individual with 

respect to his compensation, terms, conditions, or privileges of employment, because of such 

individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1). To 

establish discrimination under Title VII, a plaintiff may “introduc[e] direct evidence of 

discrimination or...[prove] inferential and circumstantial evidence which would support an 

inference of discrimination.” DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir.2004) (quoting Kline 

v. TVA, 128 F.3d 337, 348 (6th Cir.1997)). 

1. Plaintiff’s Title VII Claims 

 Defendants assert that Plaintiff’s claims should be considered under the familiar 

McDonnell Douglas burden-shifting framework. See White v. Baxter Healthcare Corp., 533 

F.3d 381, 390 (6th Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). 

Plaintiff, however, presents arguments under McDonnell Douglas, and through a mixed-motive 

analysis. Under the McDonnell Douglas standard, the Court considers only circumstantial 

evidence of Plaintiff’s Title VII claims.6

 See Serrano v. Cintas Corp., 699 F.3d 884, 892-93 (6th 

Cir. 2012). Under the mixed-motive analysis, the Court may consider direct or circumstantial 

                                                            

6

 In such cases, direct evidence is considered before delving into the McDonnell Douglas tripartite standard applied 

to circumstantial evidence. 

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evidence of Plaintiff’s discrimination arguments. Ondricko v. MGM Grand Detroit, LLC, 689 

F.3d 642, 649 (6th Cir. 2012) (internal citation omitted). Thus, the Court must determine the 

proper framework for Plaintiff’s Title VII claims prior to proceeding in its analysis. 

 It is well established that a mixed motive analysis will only be triggered in Title VII 

discrimination cases when the plaintiff has brought proper notice of his mixed-motive claims. 

Spees v. James Marine, Inc., 617 F.3d 380, 390-91 (6th Cir. 2010) (citing Hashem-Younes v. 

Danou Enters. Inc., 311 F. App’x 777, 779 (6th Cir. 2009)); see also Ondricko, 689 F.3d at 649. 

Notice “can be triggered expressly by invoking the mixed-motive analysis or impliedly through 

use of the motivating factor test in the complaint and responsive pleadings.” Ondricko, 689 F.3d 

at 649 (citing Spees, 617 F.3d at 390). Here, Plaintiff brought notice of his mixed-motive 

analysis in his motion for summary judgment. (See Plaintiff’s Motion for Summ. Judg., Doc. 77 

at 21, 29). Furthermore, Plaintiff alleges that he gave notice of the mixed-motive analysis in 

paragraph 34 of the Complaint, which states, “Defendant Vedra identified ‘the fact that he’s of 

Arab descent’ and OHS was ‘too focused on Arab[s]’ as motivating factors for Plaintiff’s 

termination.” (Complaint, Doc. 2 at 8). Plaintiff has thus met the notice requirement for 

instigating a mixed-motive analysis, and the Court need only consider his Title VII claims under 

that framework. 

2. Mixed-Motive Analysis 

 The mixed-motive framework applies in cases “where an adverse employment decision 

was a mixture of legitimate and illegitimate motives.” Wexler v. White’s Fine Furniture, Inc, 

317 F.3d 564, 571 (6th Cir. 2003) (internal citation omitted). A plaintiff “can pursue a mixedmotive claim under Title VII based on direct evidence or solely on circumstantial evidence.” 

Ondricko, 689 F.3d at 649 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 100-01 (2003)). 

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Under this analysis, “a plaintiff[] need only produce evidence sufficient to convince a jury that: 

(1) the defendant[s] took an adverse employment action against the plaintiff; and (2) race, color, 

religion, sex, or national origin was a motivating factor for the defendant's adverse employment 

action.” Bartlett v. Gates, 421 F. App'x 485, n.1 (6th Cir. 2010) (citing White, 533 F.3d at 400). 

Stated otherwise, “the ultimate question at summary judgment on a mixed-motive case is 

whether the plaintiff has presented evidence, direct or circumstantial, from which a reasonable 

jury could logically infer that a protected characteristic was a motivating factor in the 

defendant’s [termination of] the plaintiff.” Williams v. Zurz, 503 F. App’x 367, 377 (6th Cir. 

2012) (internal citation omitted). 

 It is undisputed that Plaintiff was terminated from his employment, thereby suffering an 

adverse employment action. See Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 

594 (6th Cir. 2007) (citing Ford v. General Motors Corp., 305 F.3d 545, 553 (6th Cir. 2002) (a 

termination can constitute a materially adverse employment action)). Thus, this analysis will 

focus on the latter prong of the mixed-motive framework. 

i. Direct Evidence 

 The Court first considers the direct evidence that Plaintiff proffers to demonstrate 

Defendants alleged discriminatory actions. Direct evidence is evidence that, “if believed, 

requires the conclusion that unlawful discrimination was at least a motivating factor in the 

employer’s actions.” Shazor v. Professional Transit Management, Ltd., 744 F.3d 948, 955 (6th 

Cir. 2014) (citing Grizzell v. City of Columbus Div. of Police, 461 F.3d 711, 719 (6th Cir. 2006)). 

Moreover, direct evidence “does not require a factfinder to draw any inferences in order to 

conclude that the challenged employment action was motivated at least in part by prejudice 

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against members of the protected group.” Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir. 

2003) (citing Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). 

 Plaintiff points to Vedra’s testimony at the SPBR hearing in May 2011 as evidence that 

Vedra made the recommendation that Strickrath terminate Alomari because Alomari is Arab. 

First, when asked, “What was the impetus for this change from multicultural community 

engagement to not multicultural community engagement?” Vedra responded by saying, in part, 

“I wanted, a, a woman to send a signal to the community that – that you’re in America.” Next, 

when asked, “So are you telling me now that his focus was on Muslim?” Alomari answers, “No. 

The fact that he’s of Arab descent and I think there was some, you know, feelings that, you 

know, we were maybe too focused on Arab.” In addition to Vedra’s SPBR testimony, Plaintiff 

claims that Vedra’s supposed remarks, as reported by an “unnamed insider” for the Jawa Report, 

shows that Vedra’s statements during his SPBR testimony are not random or isolated. Finally, 

Plaintiff argues that ODPS’ differential treatment of Olen Martin can only be explained by 

discrimination and retaliation. 

 Defendants argue that Plaintiff’s reliance on Vedra’s SPBR testimony is erroneous. 

According to Defendants, the SPBR hearing was meant to be limited to Alomari’s employment 

responsibilities for the two years prior to his termination, but the ALJ permitted questions about 

Renata Ramsini, Alomari’s eventual replacement, for background purposes. Thus, Defendants 

claim that Vedra’s testimony does not demonstrate what factored into the decision to terminate 

Alomari, but rather the direction the Community Engagement Officer position would take 

following Alomari’s termination. Moreover, Defendants emphasize that the SPBR testimony 

took place months after Alomari’s removal. Defendants also stress that Alomari testified that no 

one at ODPS ever commented about his ethnicity or national origin, nor made any statements 

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about his religion or race. Further, Alomari was unable to recall any statements made by 

Strickrath or Vedra that linked his termination to his allegedly protected speech. 

 Plaintiff has not demonstrated direct evidence of Title VII discrimination. Both the 

SPBR testimony and the information included on The Jawa Report would require a reasonable 

juror to draw inferences to find that Defendants’ allegedly discriminatory actions were 

motivated, at least in part, by unlawful discrimination. See Grizzell, 461 F.3d at 719 (internal 

citation omitted). Summary judgment, therefore, cannot be granted based on direct evidence. 

ii. Circumstantial Evidence 

 Though Plaintiff has failed to proffer direct evidence of discrimination, the Court’s 

analysis continues through an examination of the circumstantial evidence. Because Plaintiff’s 

termination is an undisputed material fact, in order to survive summary judgment, he need only 

“produce evidence sufficient to convince a jury that...‘race, color, religion...or national origin 

was a motivating factor’ for [the termination].” Williams, 503 F. App’x at 375 (quoting White, 

533 F.3d at 400) (internal quotation omitted). 

 Plaintiff relies entirely on Defendants’ allegedly preferential treatment of Olen Martin, an 

employee whom Alomari considers to have been similarly situated. Plaintiff takes particular 

issue with Defendants’ decision to conduct an investigation of Alomari based on his failure to 

divulge his employment at CSCC, while choosing not to investigate Martin for receiving degrees 

from an alleged diploma mill. According to Plaintiff, Defendants’ failure to investigate Martin is 

based on the fact that Martin is a white, non-Muslim, while Alomari is an Arab Muslim. 

Plaintiff further asserts that Defendants insistence that Martin’s degrees were not relevant to his 

position does not justify Defendants choice not to conduct an investigation of Martin based on 

allegations made by the Jawa Report. 

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 Defendants claim that Plaintiff does not have circumstantial evidence of discrimination. 

Defendants draw a few distinctions between Alomari and Martin. First, Defendants argue that 

Alomari and Martin cannot be considered similarly situated, because their individual jobs were 

vastly different and had particular requirements. Martin did not report to Vedra, nor did he 

perform the duties of testifying in front of a congressional committee. Martin was also not 

placed on an advisory committee for DHS. Moreover, Defendants claim that Martin’s degree, 

regardless of its merit, was not a necessary component of Martin’s employment. Conversely, 

Alomari omitted his history with CSCC, and when probed about it, answered subsequent 

questions with false information. 

 The threshold for summary judgment under the mixed-motive analysis is, undoubtedly, 

lower than that applied under the McDonnell Douglas standard. Plaintiff, however, relies 

heavily on speculation rather than undisputed facts. Plaintiff has not provided this Court with 

evidence to indicate that there are disputed issues of material fact that meet the mixed-motive 

burden of demonstrating that Defendants’ termination decision was improperly motivated by 

Plaintiff’s race, religion, or national origin. Moreover, a reasonable juror could not objectively 

conclude that Defendants decision to terminate Alomari was improperly motivated by Plaintiff’s 

race, religion, or national origin. Defendants’ Motion for Summary Judgment on Counts I, II, 

and V, is, therefore, GRANTED. 

B. Hostile Work Environment 

 Plaintiff next raises a hostile work environment claim. As the Sixth Circuit has set forth: 

Under Title VII, a plaintiff establishes a prima facie case of a 

hostile work environment based on race, religion, or national 

origin by demonstrating that (1) she was a member of a protected 

class; (2) she was subjected to unwelcome harassment; (3) the 

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harassment was based on race, religion, or national origin; (4) the 

harassment unreasonably interfered with her work performance by 

creating an intimidating, hostile, or offensive work environment; 

and (5) the employer is liable. 

Ejikeme v. Violet, 307 F. App'x 944, 949 (6th Cir. 2009) (citing Hafford v. Seidner, 183 F.3d 

506, 512 (6th Cir.1999); Bourini v. Bridgestone/Firestone N. Am. Tire, L.L.C., 136 Fed.Appx. 

747, 750 (6th Cir.2005) (prima facie elements are the same for claims of racial and religious 

discrimination)). Plaintiff, however, improperly raised his hostile work environment claim for 

the first time in his motion for summary judgment. A plaintiff may not defeat summary 

judgment by asserting a claim that he did not plead in the complaint. Tucker v. Union of 

Needletrades, Indus., and Textile Employees, 407 F.3d 784, 787-88 (6th Cir.2005) (instructing 

that if discovery reveals a claim not previously raised, the plaintiff should seek to amend the 

complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure); see also Serra v. Mary 

Jane Elliott, P.C., 13-11814, 2014 WL 1608665, at *3 (E.D. Mich. Apr. 22, 2014) (“The proper 

procedure for Plaintiff to raise this claim was to request leave to amend her complaint, not to 

raise the claim for the first time in a motion for summary judgment or a summary judgment 

response brief.”); Carter v. Ford Motor Co., 561 F.3d 562 (6th Cir. 2009) (plaintiff’s claim was 

limited to theories relied upon during discovery). If Plaintiff wanted to raise a claim of hostile 

work environment, he could have done so properly by seeking to amend his complaint pursuant 

to Fed. R. Civ. P. 15. Because Plaintiff neglected to amend his Complaint and bring properly his 

claim for hostile work environment, the Court will not consider it on summary judgment. 

C. Race Discrimination and Retaliation Under 42 U.S.C. § 1981 

 Plaintiff brings two claims under 42 U.S.C. § 1981: race discrimination and retaliation for 

opposing discrimination. Defendants argue that, pursuant to the Sixth Circuit’s interpretation 

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and application of Jett v. Dallas Independent School District, 491 U.S. 701 (1989), Plaintiff’s § 

1981 claims are barred. Plaintiff counters that, because his position could be reinstated, his § 

1981 claims are valid. In McCormick v. Miami University, the Sixth Circuit reaffirmed the 

court’s prior holdings that § 1983 is the sole remedy for § 1981 violations committed by state 

actors: 

Whether the violation of § 1981 is committed by a municipality 

through its policies or custom, or individuals acting under the color 

of state law, § 1983 contains an express clause permitting an 

aggrieved person to sue the state actor for money damages. Section 

1983's express clause permitting these suits obviates the need to 

imply the same right under the general provisions of § 1981. 

Accordingly, we conclude that § 1983 is the exclusive mechanism 

to vindicate violations of § 1981 by an individual state actor acting 

in his individual capacity. 

693 F.3d 654, 661(6th Cir. 2012); see also Mensah v. Michigan Dep’t of Corr., 513 F. App'x 

537, 538 (6th Cir. 2013); Woo Young Chung v. Berkman, 13-CV-1354, 2013 WL 4523513 (N.D. 

Ohio Aug. 26, 2013), appeal dismissed (Mar. 31, 2014); Machie v. Detroit Library Com’n, No. 

12-15299, 2014 WL 2648521, at *6 (E.D. Mich. June 13, 2014). Because Plaintiff’s § 1981 

claims were committed by individuals acting under color of state law, and Plaintiff did not 

prosecute those claims under § 1983, Plaintiff’s claims were improperly brought. As such, 

Plaintiff’s § 1981 claims are barred, and Defendant’s Motion for Summary Judgment is 

GRANTED on Counts III and IV. 

D. First Amendment Retaliation Claim 

 To establish a claim of retaliation under the First Amendment, Plaintiff’s complaint must 

set forth three elements: (1) Plaintiff was engaged in a constitutionally protected activity; 

(2) Defendants’ adverse action caused Plaintiff to suffer an injury that would “likely chill a 

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person of ordinary firmness from continuing to engage in that activity”; and (3) the adverse 

action was motivated at least in part as a response to the exercise of Plaintiff’s constitutional 

rights. Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). As this Court 

has previously established, Plaintiff’s termination constitutes an adverse action. Thus, the Court 

need only address the first and third prongs of the First Amendment retaliation claim below. 

1. Constitutionally Protected Speech or Conduct 

 When considering whether Plaintiff’s speech, as a government employee, warrants First 

Amendment protection, the Court must first determine whether the employee spoke as a citizen, 

and the employee must have addressed a matter of public concern. Weisbarth v. Geauga Park 

Dist., 499 F.3d 538, 542 (6th Cir. 2007). In Housey v. Macomb County, the Sixth Circuit 

clarified the framework used to determine whether a government employee’s speech is protected: 

a public employee's speech is only protected when: (1) it touches 

on “a matter of public concern,” Connick v. Myers, 461 U.S. 138, 

146 (1983); (2) it is not uttered pursuant to the employee's “official 

duties” but rather “as a citizen,” Garcetti v. Ceballos, 547 U.S. 

410, 421, 424, (2006); and (3) the employee's interest in the speech 

outweighs the government's interest in promoting “the effective 

and efficient fulfillment of its responsibilities to the public,” id. at 

450. All three are necessary but not sufficient conditions. Evans–

Marshall v. Bd. of Educ. Of the Tipp City Exempted Vill. Sch. 

Dist., 624 F.3d 332, 338 (6th Cir. 2010). 

534 F. App'x 316 (6th Cir. 2013). 

 It is well settled that “a matter of public concern usually involves a matter of political, 

social, or other concern to the community.” See v. City of Elyria, 502 F.3d 484, 492 (6th Cir. 

2007) (internal citation omitted). The rationale behind protecting a government employee’s right 

to comment as a citizen on matters of public concern is that “public employees are often the 

members of the community who are likely to have informed opinions as to the operation of their 

public employers, operations which are of substantial concern to the public.” City of San Diego 

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v. Roe, 543 U.S. 77, 82 (2004). A government employee must also demonstrate that his or her 

interest in the speech outweighs the government’s countervailing interest in promoting the 

efficiency of the public service it provides as an employer. Pickering v. Bd. of Ed. of Twp. High 

Sch. Dist. 205 Will Cmty., Ill., 391 U.S. 563, 568 (1968). This determination is a question of law 

for the court to decide. Connick, 461 U.S. at 147. As the Supreme Court explained in Garcetti 

v. Ceballos: 

The Court’s decisions, then, have sought both to promote the 

individual and societal interest that are served when employees 

speak as citizens on matters of public concern and to respect the 

needs of government employers attempting to perform their 

important public functions. . . . Underlying our cases has been the 

premise that while the First Amendment invests public employees 

with certain rights, it does not empower them to constitutionalize 

the employee grievance. 

547 U.S. 410, 420 (2006) (citations omitted). 

 Defendants claim that all of Alomari’s allegedly protected speech was made in relation to 

his job duties as a Multicultural Affairs/Community Engagement Officer, thereby making the 

comments part of his employment. Relying on the Weisbarth court, Defendants insist that 

Alomari’s speech should not be considered constitutionally protected. Weisbarth v. Geauga 

Park Dist., 499 F.3d 538, 544-45 (6th Cir. 2007) (in determining whether employee’s speech is 

constitutionally protected, the court must consider “whether the employee communicated 

pursuant to his or her official duties.”). Alomari was expected to engage in an analysis of the 

various trainings, including those about which he complained. Thus, Defendants proffer that his 

statements were part of his official duties. Additionally, Alomari has failed to present any 

examples of speech that was not related to his official duties. Finally, because Alomari’s speech 

primarily concerned his complaints about the direction of future OHS and DHS training sessions, 

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and employee grievances are not inherently constitutionally protected7, Alomari’s speech does 

not meet the first prong of the First Amendment retaliation analysis. 

 Plaintiff asserts that his speech was as a concerned citizen, not in relation to his job, and 

therefore must be considered constitutionally protected. Alomari complained about the trainings 

that he considered too racially and religiously biased for two reasons. First, he claims that he 

was worried that the trainings would spread incorrect information that could possibly lead to 

harm to citizens. Second, Alomari states that he believed the trainings were counter to the 

purpose and focus of the Community Engagement Office, OHS, and DHS. Alomari alleges to 

have complained to certain people outside his chain of command, intimating that doing so lends 

itself to speaking as a concerned citizen rather than in connection with his employment. Plaintiff 

further argues that his speech concerned only issues that were a matter of public concern, 

because they dealt with the public’s trust, safety, and management of public monies. 

 Plaintiff has failed to demonstrate that his speech should be constitutionally protected. 

First, Alomari has not presented adequate evidence that would lead a reasonable juror to find that 

he was speaking as a citizen, and not as part of his official duties, when he voiced his complaints 

about the training sessions. Second, Plaintiff has failed to demonstrate that his complaints 

regarded matters of public concern. Plaintiff has not pointed to any issues of material fact 

regarding the training sessions with which he takes issue. The Court considers his speech to be 

directly related to his job duties, and, therefore, not constitutionally protected under First 

Amendment Retaliation. As such, summary judgment on Count VI is GRANTED. 

2. Causal Connection 

                                                            

7 See Defendants’ Motion, Doc. 60 at 43, citing Garcetti, 547 U.S. at 420. 

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Even if Plaintiff had demonstrated that his conduct was constitutionally protected, a 

reasonable jury would not be able to find that he had shown a causal connection between his 

termination and his allegedly protected conduct. 

Under the next prong of First Amendment retaliation, the Court must consider whether 

the adverse action was motivated at least in part as a response to the exercise of Plaintiff’s 

constitutional rights. In the case sub judice, Plaintiff must demonstrate that his protected speech 

and his termination were causally connected. See Vereecke v. Huron Valley School Dist., 609 

F.3d 392, 399 (6th Cir. 2010) (citing Thaddeus-X, 175 F.3d at 399). The Sixth Circuit has set 

forth the two-step test in determining causation in retaliation actions: 

A plaintiff must show both (1) that the adverse action was proximately caused by 

an individual defendant's acts, Siggers–El v. Barlow, 412 F.3d 693, 702 (6th Cir. 

2005), but also (2) that the individual taking those acts was “motivated in 

substantial part by a desire to punish an individual for exercise of a constitutional 

right,” Thaddeus–X, 175 F.3d at 386. 

King v. Zamiara, 680 F.3d 686, 695 (6th Cir. 2012) cert. denied, 133 S. Ct. 985 (U.S. 2013). 

Defendants allege that Alomari is unable to show that there was a causal connection 

between his termination and his protected conduct. Defendants claim that there is no evidence to 

indicate that Strickrath, the ultimate decision maker in Alomari’s termination, had any 

knowledge of Alomari’s protected speech. Rather, Strickrath received the AI report and made 

the decision to end Alomari’s employment based off of that. Moreover, Alomari is unable to 

demonstrate that he ever discussed the issue with Strickrath. Because Alomari cannot link his 

removal to his speech, Defendants maintain that Alomari cannot meet the burden of showing that 

there is a causal connection between his allegedly protected activity and his termination. 

 Plaintiff contends that the temporal proximity between Plaintiff’s protected conduct and 

his subsequent termination is sufficient to show the causal connection between the two. 

According to Plaintiff, there was a twelve-day period between his last complaints and Vedra’s 

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decision to begin an investigation concerning Alomari. Additionally, less than three months 

elapsed between Alomari’s final complaint and his termination. Alomari insists that, even if the 

temporal proximity between his conduct and termination are insufficient to show causation, he 

has other evidence. Namely, ODPS’ preferential treatment of Olen Martin, a similarly situated, 

white, non-Muslim employee. 

 Plaintiff fails to present any concrete evidence to support his causation argument. Rather, 

he resorts to speculation, suggesting that the temporal proximity alone should guide this Court to 

find on his behalf. Alomari’s evidence does not show that his termination was proximately 

caused by an individual Defendant’s acts, nor that that individual was motivated by his or her 

desire to retaliate against Alomari for exercising a constitutional right. Stated otherwise, a 

reasonable juror, taking the facts in the light most favorable to Plaintiff, would not find that 

Plaintiff has met his burden for First Amendment retaliation. 

 The Court need not continue its analysis by examining whether Defendants’ can show 

“by a preponderance of the evidence, that the employment decision would have been the same 

absent the protected conduct.” Dye v. Office of the Racing Com’n, 702 F.3d 286, 294 (6th Cir. 

2012) (internal citation omitted). Defendant’s Motion for Summary judgment on Count VI is 

GRANTED. 

E. Qualified Immunity 

 Defendants’ final argument is that Defendants Vedra and Strickrath are entitled to 

qualified immunity for the claims brought against them in their individual capacities. 

 The Supreme Court has held that “government officials performing discretionary 

functions, generally are shielded from liability for civil damages insofar as their conduct does not 

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violate clearly established statutory or constitutional rights of which a reasonable person would 

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (internal quotations and citations 

omitted). An official is immune from both damages and suit if qualified immunity is applicable. 

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). The plaintiff carries the burden of proof to show 

that the defendant is not entitled to qualified immunity. Wegener v. City of Covington, 933 F.2d 

390, 392 (6th Cir. 1991). 

 This Circuit employs a two-step process when deciding questions of qualified immunity, 

which is a question of law. Bell, 308 F.3d at 601. First, a court must determine whether, on the 

plaintiff’s facts, a constitutional violation has occurred. Hoover v. Radabaugh, 307 F.3d 460, 

465 (6th Cir. 2002). Second, the court considers whether “the platintiff’s constitutional right was 

clearly established.” Kiessel v. Oltersdorf, 459 F. App’x 510, 515 (6th Cir. 2012). 

 Defendants argue that Defendants Strickrath and Vedra should be granted qualified 

immunity for the claims brought against them in their individual capacities. According to 

Defendants, Alomari has failed to show that he suffered a constitutional violation. Moreover, 

even if there was a constitutional violation, Defendants argue that there is no way they could 

have been on notice of such violation, thereby warranting the shield of qualified immunity. See 

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (discussing the notice requirement inherent in qualified 

immunity inquiries). 

 Plaintiff asserts that Defendants should not be granted qualified immunity for two 

reasons, both of which are directly linked to his claim of First Amendment retaliation. First, 

Plaintiff insists that he has established a First Amendment violation. Second, Alomari claims 

that Vedra and Strickrath had to have understood that terminating Alomari’s employment for 

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“engaging in protected speech,” was a constitutional violation of Alomari’s rights. (Plaintiff’s 

Resp., Doc. 80 at 44). 

 Plaintiff failed to establish that he suffered First Amendment retaliation. Without a 

constitutional violation, the Court cannot apply qualified immunity. Thus, this claim is MOOT. 

V. CONCLUSION 

 For the foregoing reasons, Defendants’ Motion is GRANTED, and Plaintiff’s Motion is 

DENIED. This case is DISMISSED. 

IT IS SO ORDERED. 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

UNITED STATES DISTRICT JUDGE

Dated: August 13, 2014

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